Opinion
E049652 Super.Ct.No. RIF151162
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. TERRY SCOTT ALLEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. John V. Stroud, Judge. (Retired judge of the Sacramento Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Carey D. Gorden, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Terry Scott Allen appeals after he was convicted of two drug possession charges. He asserts that his trial counsel rendered constitutionally ineffective assistance in failing to object to instances of prosecutorial misconduct. He further contends that an amendment to the statute providing for presentence custody conduct credits should be applied retroactively to his case. We reject both contentions and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Deputy Jerry Abbott, a member of a drug task force team, went to a mobilehome to conduct a probation search of Lisa Gomez, who was living there. Defendant, who owned the home, was also present at the time of the search. In the master bedroom, which defendant occupied, officers found: (1) some glass pipes for ingesting drugs; (2) a baggie of apparent methamphetamine (located in a wallet inside a purse, which had been set on the bed); (3) a digital scale with a white residue on it; (4) two baggies of white crystalline substance (found inside a magnetic hide-a-key box, attached to the back of a stereo receiver); and (5) a suspicious pill (found inside a medicine bottle in defendant's name, which contained several different kinds of pills). The defense stipulated that the baggie found in the purse had 0.15 grams of methamphetamine, the two baggies in the hide-a-key box contained 1.25 grams of methamphetamine, and the suspicious pill was found to be Ecstasy, or methylene oxymethamphetamine, an analogue of methylene dioxy amphetamine.
As a result of the search, defendant was charged by information with one count of unlawful possession of Ecstasy, in violation of Health and Safety Code section 11377, subdivision (a), and one count of possession of methamphetamine, also in violation of Health and Safety Code section 11377, subdivision (a).
At trial, defendant denied that the drugs were his. Defendant admitted he had been previously convicted of possession of methamphetamine in 2004, and he had also pleaded guilty in another case to possession of methamphetamine for sale and other charges. Defendant claimed he had stopped using drugs after the earlier convictions, when his doctor explained how methamphetamine was affecting his health problems. Defendant claimed he had been clean and sober for about four years.
Defendant had an on-and-off relationship with Gomez. They had first started a relationship a few years earlier, when both had been doing drugs together. The relationship soured and defendant obtained a restraining order against her because she continued to abuse drugs and alcohol, while he was staying clean.
On the day before defendant's arrest on the instant charges, he claimed he had spent the night with a friend. He stopped by his home that morning to pack a few things to take to his father's house. Gomez was at defendant's home, and she seemed like she was under the influence of drugs.
Defendant disclaimed knowledge of any of the drugs found in the home. Gomez had full access to the house, and defendant had seen her sometimes with his prescription medication bottles. The black wallet found in the purse on the bed was Gomez's. Even though the wallet had a credit card in defendant's name, defendant claimed he had lost that card and did not know that Gomez had it.
Gomez also testified on defendant's behalf. She had pleaded guilty to possession of methamphetamine in connection with the search and the drugs found at defendant's residence. She claimed that all the drugs found in defendant's home belonged to her, including the drugs in the wallet. The Ecstasy belonged to a friend who had accidentally left it at the house, and not to defendant. Gomez claimed she would typically hide drugs throughout defendant's house.
On rebuttal, the prosecutor presented evidence that, in defendant's 2004 drug case, he had denied knowledge of the drugs found in his room, and again during another arrest, he had disclaimed any knowledge of drugs found.
The jury found defendant guilty as charged on both counts. Defendant was sentenced on November 6, 2009. The court sentenced defendant to two years in state prison, and awarded defendant 38 days of actual presentence custody credit, plus 18 days of presentence custody conduct credits pursuant to Penal Code section 4019.
Defendant filed a timely notice of appeal on November 17, 2009.
ANALYSIS
I. Trial Counsel's Representation Was Not Ineffective
Defendant first urges that his trial counsel rendered constitutionally ineffective assistance in failing to object to several claimed instances of prosecutorial misconduct. In order to prevail on a claim of ineffective assistance of counsel (IAC), a defendant must show both that counsel's representation fell below an objective standard of reasonableness, and that the defendant was prejudiced by counsel's alleged deficient representation. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
A claim of prosecutorial misconduct is waived on appeal unless trial counsel objects and requests that the jury be admonished. (People v. Hill (1998) 17 Cal.4th 800, 820.) Here, defense counsel failed to object, and thus as a matter of direct appeal have been waived. However, defendant has couched the claims of prosecutorial misconduct not as direct trial error, but as claims of IAC. To forestall the need to bring duplicative writ proceedings in habeas corpus, we address the claims briefly.
Defendant urges that the prosecutor committed misconduct in four instances: by improperly vouching for the veracity of a witness, by inflaming the jury, by arguing that the defense had been fabricated, and by arguing facts not in evidence.
The prosecutor did state that he was "very impressed" with one of the officers' "character, his knowledge, his expertise." This was improper vouching, but it is not reasonably probable that defendant would have obtained a more favorable result had the remark not been made, or had counsel objected and the jury been instructed to disregard the remark. The jury had already been instructed that the statements of counsel are not evidence. Moreover, the credibility of the officers was not the pivotal issue in the case. No one disputed what drugs were found or where. The nature of the substances had been established by stipulation. The crux of the case was the credibility of defendant's denial of any knowledge of the drugs, and the credibility of Gomez's supporting testimony, claiming that all the drugs were hers (or her friend's, but not defendant's). Defendant cannot show prejudice from the remark.
Gomez testified that she knew of only one methamphetamine pipe being found, rather than four as the officers testified. She did not know what a "hide-a-key" was. She claimed to have hidden drugs in the house, "under couches and inside a dresser," not in a magnetic box behind the stereo. She could not say where she had stored methamphetamine in the bedroom. She said that the officers only showed her one bag of methamphetamine that had been found, and that was the one from her purse. She stated that her friend had brought the Ecstasy in a bottle and left it in defendant's bedroom; she did not take the Ecstasy out of the bottle the friend had brought.
Defendant complains of the prosecutor's comment in closing argument that "Meth is a scourge in Riverside County." The prosecutor attempted to answer a potential argument that simple drug possession in the privacy of one's home should not be prosecuted, saying "it doesn't stay in your home. It goes out and has stolen bank cards and things of that nature. It usually leads to other crime. Guns get involved, et cetera, et cetera." Leaving aside whether the remarks were improper, defendant's IAC claim again fails on the prejudice prong. It is a truism that involvement in illegal drugs is frequently coupled with other crimes. In this case, defendant claimed that Gomez, a drug user, had stolen his credit card, and that was why it was found in the wallet in her purse. Defendant himself had suffered a prior conviction for drug sales, not merely possession, which was coupled with a conviction for gun law violations. There was nothing remarkable or particularly inflammatory about the prosecutor's comments, which served only to admonish that the jury should take the present case seriously. It is not reasonably probable that, in the absence of the remark, the result would have been different. Again, the evidence showed that drugs were found in several locations in the master bedroom and bathroom, which were spaces that were clearly occupied by defendant. The only issues were whether his disclaimer was believable, and whether Gomez's claim that all the drugs were hers (i.e., not defendant's) was believable.
In closing, the prosecutor also argued: "Now, consider the defense. He gets to sit here and listen to my case in chief. He sat right there. And what's interesting is at the very beginning there was a witness list read to you. And after my case in chief, you probably - I observed a lot of discussion between the defendant and his attorney, and then suddenly we have a surprise witness, somebody that wasn't on the witness list. It was a surprise to me. I didn't have a statement from this person. I never heard of this person and what he might testify to." Defense counsel did object to this remark on the ground of facts not in evidence. The court inquired whether there was a witness who had not been disclosed to the prosecutor and overruled the objection.
Defendant urges that the prosecutor's statement was erroneous in two ways: first, the remark may have suggested that counsel had fabricated a defense, and second, there were "facts not in evidence," i.e., that there was a surprise witness, that the prosecutor had not heard of said witness, and that he had never received a statement from that witness.
As to the latter point, facts not in evidence, trial counsel did object. Counsel therefore could not have rendered ineffective assistance in failing to object on that ground. The trial court overruled the objection. The gist—that there was a new witness—was already known to the jury. The defense witness list included four names. Raul Sotolongo's name was not one of them. At trial, Sotolongo testified that defendant frequently stayed with him and defendant had spent the night before his arrest at Sotolongo's residence. (Gomez also provided testimony that defendant had not been at home the night before his arrest, and he rarely spent time at home.) As to whether, additionally, the prosecutor had never heard of Sotolongo before he was called to testify, and whether he had received a statement from the witness, such "facts" may not have been in evidence, but in any case those "facts" were neither relevant, nor of any particular weight or import. The witnesses called at trial had testified, and the jury had before it every witness's actual testimony. Defendant cannot show any prejudice from such tangential "facts not in evidence."
As to the aspect that the prosecutor was insinuating that defense counsel had fabricated a defense, the IAC claim once again founders on the prejudice prong. The crux of the case was not whether defendant had spent some, or many, nights away from home. There was overwhelming evidence that he occupied the master bedroom and bathroom in his own residence, even if he frequently spent time away. The place was strewn with his clothing and full of his possessions. He was in fact in the residence early in the morning on the day of his arrest, whether or not he had spent the night there. The efforts to blame Gomez, the co-occupant, for the presence of drugs in the house, were less than believable. For one thing, defendant had a pattern of denying possession of drugs that were his. For another, Gomez had only the haziest idea of what was found or where. She did not know about the hide-a-key box and did not claim knowledge of the two baggies of methamphetamine found in it. Her story about why she had defendant's bank card in her wallet was very different from defendant's. She claimed a friend had left the Ecstasy behind in a bottle the friend had brought with him; her testimony failed to explain how the Ecstasy ended up in a bottle of defendant's prescription medication. Because of the relationship between defendant and Gomez, she had every reason to lie on his behalf, and in fact she admitted talking to defendant about his case the night before she testified, and she had traveled to court with him. The critical issue was whether defendant's and Gomez's stories, that defendant did not know anything about the drugs found in his bedroom and medicine cabinet, was believable. The "surprise witness" had little or no effect on that critical issue. It is not reasonably probable that, had there been an objection and admonition on the ground of misconduct (fabricating a defense), the result would have been any more favorable to defendant.
All of defendant's IAC claims fail.
II. Defendant Is Not Entitled to Additional Presentence Custody Conduct Credits
Defendant next contends that he should be entitled to additional presentence custody conduct credits under Penal Code section 4019. Under the version of Penal Code section 4019 (section 4019) in effect at the time both of defendant's offenses and his sentencing, he could be awarded up to two days of conduct credits for each period of four days of actual presentence custody he had served. Defendant's sentence, and award of credits, fully complied with the version of former section 4019 then in effect. (Former § 4019, added by Stats. 1982, ch. 1234, § 7, p. 4553.)
In October 2009, however, the Legislature amended section 4019 to provide for an enhanced ratio at which defendants could earn presentence conduct credits, i.e., that a defendant (with exceptions not relevant here) is entitled to two days of conduct credit for each two days of presentence custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, pp. 4427-4428.) The effective date of the amendment was January 25, 2010.
We note that section 4019 has been amended again. Effective September 28, 2010, section 4019 was amended to apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) The discussion in this opinion concerns the amended version of section 4019 that became effective on January 25, 2010. Thus, any reference to section 4019 or the 2010 amendment to section 4019 concerns the amended version of section 4019 that became effective on January 25, 2010. Any reference to "former" section 4019 concerns the version of section 4019 that was in effect prior to January 25, 2010.
Defendant here was sentenced on November 6, 2009, before the effective date of the amendment. Because he appealed, and the judgment in his case is not yet final, he urges that the enhanced credits scheme should be applied retroactively to him.
The question of whether a defendant sentenced before January 25, 2010, is entitled to the benefit of the amended version of section 4019 is currently before the California Supreme Court. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [finding retroactive application].) That court has granted review in People v. Brown, which held that the amendments applied retroactively, and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which held that the amendments were not retroactive. Because the California Supreme Court will ultimately resolve the conflict on the issue among the various Courts of Appeal, we discuss the issue only briefly.
Under Penal Code section 3, " '[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and compelling implication.
Indeed, there is at least one indication that the Legislature did not intend the amendment to be retroactive. Penal Code section 2933.3, subdivision (d), as amended by the same bill, provides that for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (Pen. Code, § 2933.3, subds. (b), (c), added by Stats. 2009, supra, ch. 28, § 41, p. 4422.) By necessary implication, all other enhanced credits for all other defendants are to be prospective only.
We recognize that, under In re Estrada (1965) 63 Cal.2d 740, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.) Presentence conduct credits, however, are not a mitigation of punishment. Rather, they are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405; People v. Austin (1981) 30 Cal.3d 155, 163.) Accordingly, amended section 4019 applies prospectively only.
Nor is defendant entitled to enhanced conduct custody credits under equal protection principles. Relying on In re Kapperman (1974) 11 Cal.3d 542 and People v. Sage (1980) 26 Cal.3d 498, defendant contends that failure to apply amended section 4019 retroactively would violate his state and federal equal protection rights.
Neither Kapperman nor Sage is applicable here. Kapperman held that an express prospective limitation upon the statute creating presentence custody credits was a violation of equal protection because there was no legitimate purpose to be served by excluding those already sentenced. (In re Kapperman, supra, 11 Cal.3d at pp. 544-545.) Kapperman is distinguishable because it addressed actual custody credits, not conduct credits. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served. Similarly, Sage is inapposite, because that case involved a prior version of section 4019, which allowed presentence conduct credits to misdemeanants, but not felons. (People v. Sage, supra, 26 Cal.3d at p. 508.) The California Supreme Court found that there was neither "a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons." (Ibid., fn. omitted.)
The purported equal protection violation at issue here, however, is temporal, rather than based on a defendant's status, such as a misdemeanant or felon, as in Sage. One of section 4019's principal purposes, both as formerly written and as amended, is to motivate good conduct. Defendant and those similarly situated to him, whose sentencing occurred before the January 2010 amendment, cannot be further enticed to behave themselves during their presentence custody. A defendant's conduct cannot be influenced retroactively; this provides a rational basis for the Legislature's implicit intent that the amendment only apply prospectively.
Simply put, the principal purpose of section 4019 is to motivate good conduct. A defendant's past conduct cannot be motivated retroactively. This is a rational basis for applying the amendments prospectively only. Thus, defendant is not entitled to additional conduct credits.
Defendant posits a hypothetical in which two prisoners are arrested on the same date, but one is ultimately sentenced on January 24, 2010, and one is sentenced on January 25, 2010. Even though each prisoner has almost identical actual presentence custody days, one is awarded conduct credits at twice the rate of the other. Defendant urges that the rationale of motivating good conduct is no different in one case than the other. This is, however, manifestly untrue, and is based on a misapprehension that credits are "earned as you go." In re Walrath (1980) 106 Cal.App.3d 426, expressly rejected any such notion of incremental earning of conduct custody credits. Otherwise, an inmate could regard credits as to time already served as inviolate from loss for misconduct, and the jail administrators' hands would be tied in terms of potential discipline. The jail administrators must be free to consider both the frequency and the severity of any misconduct in determining how much credit could be lost as a penalty for misconduct. (Id. at pp. 430-431.)
There is a rational basis, as noted, for treating the amendment as prospective only: the purpose of providing credits is to motivate good behavior and cooperation. Such motivation cannot be performed in the past; however, the moment an inmate's incarceration extends into the postamendment period, all potential credits are subject to penalty and may be lost at the enhanced rate for current misconduct. As to time, therefore, the prisoners sentenced before and after the effective date of the amendment are not similarly situated. Credits are not "earned as you go," but may only be awarded by the court at the time of actual sentencing, and only under the law in effect at that time. We therefore reject defendant's equal protection challenge with respect to presentence conduct custody credits.
DISPOSITION
For the reasons stated, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
KING
J.
MILLER
J.